What is Maintenance?

Maintenance is kind of an odd label that we use in
Wisconsin to describe spousal support or support paid from one spouse to the
other. Other states use the label alimony and that is more commonly understood.

The concept of maintenance is designed to share income between two divorcing spouses so that each spouse has approximately a similar standard of living.

There are many concepts that are involved in a maintenance determination. The key determinations in a maintenance case are the amount of maintenance and the duration of the maintenance award. In other words, we want to know how much our client is going to get in maintenance and for how long.

The maintenance award is based on many factors. Wis. Stat. 767.56(1c) establishes ten (10) statutory factors that the Court must consider in making the determination of the amount of maintenance and the duration of maintenance.

The first statutory factor is the length of the marriage. Now, the statute does not say that the factors listed in the statute are listed in order of importance, however, I can tell you from my years of experience that the length of the marriage is the first question judge’s ask and want to know in determining whether or not maintenance should be paid. The concept is that in short-term marriages (usually considered to be less than ten years) maintenance is difficult to obtain for the requesting spouse. I have been successful in obtaining maintenance for people who have been married for less than ten years. Typically, we have some rather extraordinary circumstances that are existent that downplay the importance of the length of the marriage. Examples would be that one spouse has become ill during the marriage and that illness has resulted in an inability to obtain and maintain employment; or child birth and child rearing have caused the spouse seeking maintenance to be unable to work either as they have in the past or work at a level that would allow them to become self-supporting. These are the two (2) most common or frequent examples that we have that would allow us to go to court and seek maintenance in shorter-term marriages.

In moderate length marriages (between 10 and 20 years), we find that Courts may more readily award maintenance, but would do so in circumstances where a spouse has given up employment opportunity. In a moderate length marriage, a maintenance award is typically not the result of an equal division of the income of the parties and usually is not for a very long duration.

The easier maintenance cases are those where parties have been married for 20 years or more. In those cases, we find that most Courts will adhere to the concept of an equal division of income and have maintenance continue for an indefinite time period. “Indefinite” simply means that maintenance will continue until further order of the Court. Please understand that maintenance will always terminate upon the death of either party and upon the remarriage of the party who receives the maintenance award.

The statutory factors that exist beyond the length of the marriage include considerations regarding the age and physical and emotional health of the parties; the division of property; the educational level of each party; the earning capacity of the party seeking maintenance; the feasibility that the party seeking maintenance can be self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage; any mutual agreement made by and between the parties; the contribution by one party to the education, training, or increased earning power of the other. The statute still asks the Court to consider tax consequences to each party, however, this factor, quite honestly, is no longer important because maintenance is no longer a taxable income to the recipient. Maintenance is no longer tax deductible to the payor.

In addition to the statutory factors, the Court is required to address two (2) objectives of maintenance. The two (2) objectives to maintenance are the support of objective, which essentially means allowing each spouse to meet their monthly budgetary expenses to the extent possible. The other objective is the fairness objective. That objective calls for the Court to take in a kind of overview of the facts and circumstances of the case and do what the Court deems to be fair to both spouses.

Maintenance is an emotionally charged and usually highly contested issue. It is important that if you are a party needing maintenance from the opposing party, you should consult with an attorney. A good attorney will be able to guide you through the process and will be able to assist in the presentation of facts that would allow the Court to grant you a maintenance award.

At Darrow & Dietrich, S.C., we have had the privilege of representing clients in court on hundreds and hundreds of maintenance cases over our years of practice. We are tremendously experienced in the presentation of facts that have resulted in successful maintenance award. Please make an appointment to see us if you are in need of legal assistance.